The (Supreme Federal Court) formed a majority this Thursday (23) to allow mayors, governors or presidents to appoint relatives to political positions, such as municipal or state secretary or minister of state. The ministers’ understanding is that the head of the Executive has the power to define the formation of the government.
During the session, ministers debated some criteria considered important to prevent abuses, such as restricting the decision to the first level or excluding positions from other Powers. The conclusion, however, should be given next week.
So far, there are six votes, in line with the rapporteur, . He was followed by Cristiano Zanin, Kassio Nunes Marques, Alexandre de Moraes and Dias Toffoli.
Minister Flávio Dino disagreed and defended not accepting exceptions to the ban on nepotism. Cármen Lúcia, Gilmar Mendes and Edson Fachin still have to speak.
Fux stated that the issue is new, under debate within the law itself and in other areas.
“There is a relative consensus among historians and social scientists that among the causes and ills of the country there is a historical cultural trace between private and public instances,” he said.
In this specific case, the court analyzes the decision of the TJSP (São Paulo State Court of Justice) to invalidate a law in the municipality of Tupã that allowed the appointment of relatives up to the third degree, blood or similar to the municipal secretariat.
The rapporteur proposed the validation of Tupã’s law. For him, secretarial positions are parallel to the positions of minister of state. “Positions of political existence are necessary as components of the government,” he said.
According to the minister’s proposal, the prohibition defined in other cases against nepotism does not apply to the topic under debate, as long as the technical qualification and probity of the agent to be appointed are proven.
“The prohibition contained in binding summary 13 does not apply to the appointment of a spouse, partner or relative in a direct line or even in the third degree… of the appointing authority for positions of a political nature as long as the requirements of technical aptitude and moral suitability are met, cross nepotism is prohibited,” he said.
“It is also not a letter of freedom to appoint anyone if there is no technical aptitude”, he continued.
The extraordinary appeal has recognized general repercussion, which means that the thesis established in the judgment applies to all similar cases.
During the session, André Mendonça stated that the ministers talked about the topic before the start of the session and reached “a good dose of convergence”.
“Positions of a political nature, by their logical nature, are for the designation of members of the Executive and which, by logical consequence, would not include in this freedom of appointment those positions that are part of other Powers, of the Judiciary, especially the fifth constitutional, higher courts. It would be very convenient, for example, for the governor or president to appoint a son or brother as the head of the corresponding MP and we would have an obvious conflict of interest”, he said.
The ministers debated the application of a previous court ruling, number 13, published in 2008 and which prohibits the practice of nepotism.
The text says that the appointment of a spouse, partner or relative up to the third degree of authority to a position in commission or trust or, even, to a paid role in direct and indirect public administration in any of the Powers of the Union, the States, the Federal District and the Municipalities violates the Constitution.
In its appeal to the STF, the municipality claimed that the appointment of relatives in political positions would not be covered by the summary.
Binding Precedent 13 of the STF:
“The appointment of a spouse, partner or relative in a direct line, collateral or by affinity, up to the third degree, inclusive, of the appointing authority or of a servant of the same legal entity invested in a position of management, leadership or advisory, to hold a position in commission or trust or, even, a paid function in direct and indirect public administration in any of the Powers of the Union, the States, the Federal District and the Municipalities, including adjustment through appointments reciprocal, violates the Federal Constitution.”
